ANPR PCN - North Greenwich London Underground Station

Boggy0220

An ANPR PCN was issued by NCP earlier this year for an alleged breach of the T&Cs of this LU car park, namely failing to pay before leaving the car park. I am assisting a colleague with their appeal to POPLA.

The vehicle in question is a lease car and so the original NTK went to the RK, who in turn kindly advised NCP the details of the company leasing the vehicle. A Notice to Hirer was subsequently received at the company address asking for payment or the name of the driver. In a mad moment of panic, and without consultation, an online appeal was submitted by a third-party who had been in the car and had tried to pay for parking over the phone on the day of the alleged breach and it is only now that they seek help to deal with the situation. It would appear that due to a technical issue the payment process did not complete and no money was taken and so the reason for the PCN being issued. A copy of the online appeal was not made but it is believed that details of the driver MAY have been mentioned somewhere within it.

In an effort to deal with this matter in a fair and civil way, an offer to pay NCP the original cost of car parking for the day was made by the company. The company have not had any response to this offer but a letter has, however, now been received by another person at a different address advising them that "their recent correspondence" had been reviewed and that "their appeal" had been rejected and that "they" should now pay or appeal the charge via POPLA. A POPLA code was provided. The person receiving the letter from NCP was not the person sending the offer of payment letter from the company and does not live at the company address.

It would appear that "keeper liability" is not being relied upon as there is no mention of it within any of the documents received and even if it was, a number of aspects to fulfill the the requirements of the Act have not been met, bearing in mind that it is a lease vehicle.

Clearly, it doesn't help that an innocent disclosure MAY have taken place but is there any advice that can be given to try and deal with this situation. It is understood that this car park belongs to TFL and so MAY be subject to the relevant Byelaws.

I have drafted an appeal as follows as seek any advice before it is submitted:

Boggy0220

I am in receipt of a letter addressed to myself at my home address, dated the xxx, from National Car Parks Limited (NCP). The letters refers to my “recent correspondence” regarding Parking Charge Notice - xxx, how they have carefully considered the case and their decision to reject my appeal. The letter states that the grounds for rejection is because an Automatic Number Plate Recognition service has recorded that a parking session for my vehicle was not paid for within the stipulated time. The date of this alleged incident at North Greenwich London Underground Station has been given as xxx. The letter makes no mention of a specific time, or period of time, and contains no photographic evidence to support their claim. The letter provides a list of options that I may choose to follow, including how to pay the Parking Charge Notice. The letter provides the above POPLA verification code and points out that if I choose to do nothing they will seek to recover the monies owned to them via their debt recovery procedures and may proceed with Court action against me.

In the first instance I must point out that on xxx I was no where near this station car park, and had no reason or cause to be at that location. I was, in fact, at work or at home sleeping after a night shift. The claim they make against me in this letter is wrong.

In the second instance, as a matter of openness, I must point out that the vehicle registration number referred to in this letter relates to a vehicle that is on a business lease to my husband and that I am an authorised user of it. Neither myself or my husband are the Registered Keeper and neither of us has any legal title of ownership.

.

In a third instance, again as a matter of openness, I must point out that I am aware that on or around xxx an ANPR Postal Notice to Driver/Hirer, dated xxx and addressed to xxx , was received at my husbands business address. This notice bears the same PCN number but is related to an alleged breach of Terms and Conditions on xxxx , some three weeks previous to the date given in the letter to me. An appeal was made by a third party in response to that Notice and, unbeknown to me, information may have be given that named me or indicated that I was the driver.

I now face the situation where I have received threats of court action should I not pay a sum of £100.00 to NCP and so have no option but to challenge their demand using via the POPLA adjudication service.

As such, I hereby raise this appeal based on the following points:

Railway Land Is Not “Relevant Land.”
Lack of standing / authority from landowner.
No evidence provided to prove ownership.
No evidence to show who was the driver
No opportunity to appeal.
Signage.

1. Railway Land Is Not “Relevant Land.”

The NCP operated car park at North Greenwich London Underground station is located upon land belonging to the railway. Railway land is subject to The Transport for London Railway Byelaws and applies to London Underground, Docklands Light Railway and London Overground services and regulate the use and working of, and travel on, the railway and railway premises and the conduct of all people while on those premises.

The definition of “relevant land” is provided within the Schedule 4 of the Protection of Freedoms Act 2012, under section 3(1)(c). It says that “relevant land” means
any land on which the parking of a vehicle is subject to “statutory control.”

A Byelaw is a long standing and recognised form of “statutory control”. Breaches are dealt with through the Magistrates Courts and upon finding a defendant guilty a penalty may be imposed. Section 23 of the Byelaws states “Any person who breaches any of the Byelaws commits an offence and may be liable for each such offence to a penalty not exceeding level 3 on the standard scale.”

On the basis that Byelaws cover this station , it follows that the Protection of Freedom Act 2012 is not applicable to this case and any claim made for parking charges by NCP against the driver, hirer or registered keeper is unfounded. The onus is upon the operator, NCP, to provide evidence to the contrary. If they disagree with this point I require them to produce documentary proof from Transport for London/London Underground that this land is not covered by the said byelaws.

2. Lack of standing / authority from landowner

National Car Parks Ltd is a member of the British Parking Association and has not provided any evidence to show they have a title upon the land on which they operate nor a British Parking Association (BPA) compliant landowner contract that assigns the rights to charge and enforce in the courts in their own right, or otherwise.

Section 7of the British Parking Association Codes of Practice states that “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent)” and dictate some of the required contract wording. NCP have no legal status to enforce this charge because there is no assignment of rights to pursue Parking Charge Notices in the courts in their own name, nor standing to form contracts with drivers themselves. They do not own this car park and merely appear to have a license to put signs up and employ the use of ANPR and are merely acting as agents. NCP has provided no evidence to show are entitled to pursue these charges in their own right.

If NCP disagree they are to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged breach of Terms and Conditions in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with Section 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

3. No evidence provided to prove ownership.

Section 14(3) of the Transport for London Railway Bylaws states “No person in charge of any motor vehicle, bicycle or other conveyance shall park it on any part of the railway where charges are made for parking by the Operator or an authorised person without paying the appropriate charge at the appropriate time in accordance with instructions given by the Operator or an authorised person at that place” Section 14(4) states “The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of any of Byelaws 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.”

I am not the owner of the vehicle and cannot, therefor, be liable for the charge or penalty. If NCP disagree they are to provide evidence to the contrary.

4. No evidence to show who was the driver.

NCP have not provided any evidence to show who was the driver. A disclosure and naming of a driver within an appeal lodged by a third party who was neither the driver, registered keeper or hirer cannot be held to be strict evidence. In order to pursue a driver for an unpaid charge, there must either be an admittance by the driver or some other form of independent evidence to substantiate the claim. Of course, if POFA 2012 is held not to be in force, the naming of the driver , either by admission or otherwise, is irrelevant.

If NCP disagree they are to provide the evidence to the contrary.

5. No evidence of the alleged breach and no opportunity to appeal.

The letter sent to me by NCP is the first correspondence I have received regarding this matter. I have not received a Parking Charge Notice or anything that may purport to be one. The letter fails to provide any evidence to their claim There is no time, or period of time, of when the alleged breach occurred, no photographic evidence of the vehicle being on the site, no wording to the specify the exact breach of Terms and Condition and no opportunity given to appeal to them directly.
Section 22.2 of the BPA Codes of Practice states “Whenever you issue a parking charge notice, whether by hand or by post, you must tell the recipient about the arrangements for resolving appeals.These include
• your procedures for dealing informally with appeals by motorists about the parking charge notice or any matter in it
• the arrangements for independent appeal
Motorists should first use your procedures for resolving appeals, before being able to refer them to an independent appeal.You should tell motorists at what stage an independent appeal to POPLA becomes available.”
NCP have failed to comply with the codes of Practice.With no evidence being provided, it cannot be expected that I could make a satisfactory assessment of the alleged breach and therefor has puts me at a significant disadvantage right from the start.

6. Signage.

NCP is registered as an Approved Operator Scheme (AOS) member with the British Parking Association (BPA). In the letter from NCP they say that all signage is compliant with all industry standards and to the British Parking Association’s Code of Practice. NCP have not provided any evidence of the signage that was in place on the date of the alleged breach or evidence to support their claim of compliance and so I can only say that signage was not clear, visible and compliant.

If NCP disagree they are to provide the evidence to the contrary.

On the basis of my appeal points and the lack of evidence to support the claim being made by NCP I respectfully request that my appeal is upheld and the charge is dismissed accordingly.

Coupon-mad

I think that's fine so far. I have seen this on pepipoo where I post as SchoolRunMum. You could just improve the point about no landowner authority, by removing this fairly old template waffle paragraph:

If NCP disagree they are to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged breach of Terms and Conditions in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with Section 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

and replacing it with a quote of 7.3 from the CoP, which states what a contract with the landowner must include, in some detail.

Boggy0220

Yes, indeed you have and I'd like to say thank you for your comments on the other forum and on here. I can very easily alter the text as suggested and in fact it sounds more reasonable. I won't post up the change as it is all self-explanatory.

I'll keep you informed of how things pan out for my colleague. Fingers crossed...

Boggy0220

Just had an email from POPLA informing me that they have received the evidence pack from NCP and that I now have seven days to respond. They further state that I should contact NCP directly if I have not received their evidence.

As far as I am aware the onus is on the ppc to send it to me, not for me to go chasing them.

Should I wait or ask them?

Oh, and the six month period has since passed ��

Umkomaas

Boggy0220 wrote: »

Just had an email from POPLA informing me that they have received the evidence pack from NCP and that I now have seven days to respond. They further state that I should contact NCP directly if I have not received their evidence.

As far as I am aware the onus is on the ppc to send it to me, not for me to go chasing them.

Should I wait or ask them?

Oh, and the six month period has since passed ��

I'd write back to POPLA and ask why you have to do this? Where is this requirement shown on the POPLA website. If NCP do not forward it you, you are at a disadvantage of their making. Will POPLA be reporting NCP's failure to follow process to the BPA for sanction?

We have to make it as difficult as possible for PPCs who conveniently avoid doing anything that's inconvenient to them - they're quite happy to make it as difficult and inconvenient as possible for the motorist. Fight fire with fire!

Boggy0220

The evidence pack was sent out by post and received yesterday. I have only just had the chance to take a browse but NCP seem to have done a very good job at confusing the whole matter!
Within the pack is a heavily redacted "contract" which is shown as being between NCP and London Underground Ltd (LUL). LUL are shown to be a Private Limited Company and a subsidiary of Transport Trading Ltd, who are subsidiary of Transport for London.
The "contract" provided consists of three pages:
1. The first page, which is redacted to some extent, shows that the contract is between NCP and LUL and in one paragraph states "LUL owns a number of car park properties adjacent and close to LUL stations which it makes available to its customers." In another paragraph it states " LUL herbal appoints the Contractor, and the contractor agrees, to provide the Services in respect of the Car Parks on a concession basis for the benefit of itself, LUL and the Customers on and subject to the terms and conditions of the Contract." A foot note shows this to be page 1.
2. The second page, again redacted, goes on to state " LUL hereby appoints the Contractor, and the Contractor agrees, to provide the Services in respect of each of the Car Parks in accordance with the terms of the Contract." A footnote shows this to be page 10.
3. The third page is the signing off of the contract and states " THIS CONTRACT has been signed by the duly authorised representative for and on behalf of the Parties on the day and year first above written." The document is signed off by the CEO of NCP and the MD of LUP in May 2009. A footnote shows this to be page 146.

NCP have, for what ever reason, not only failed to supply a full copy of the contract but what they have provided has been redacted. The BPA clearly says what must be in a contract between the LANDOWNER (or their appointed agent) but I when so much is missing how can I, or indeed an adjudicator, know what is or isn't in that contract? Is this acceptable? Equally, how does this show that North Greenwich LU station specifically is subject to the contract and that they are able to enforce breaches of T&Cs and issue Parking Charge Notices? Based on what has been provided, I am of the opinion that it doesn't.
In their summary, with regards to the service of the PCN, they state " The PCN was issued in a Non POFA car park and issued under breach of contract. The PCN was not issued under Bylaws. We appreciate that Railway Station car parks generally issue a Penalty Charge Notice under these Bylaws, however, the LANDOWNER has authority to issue under Breach of Contract instead and as such register to with the BPA offering the POPLA services should they wish to do so rather than issue a Penalty notice (Bylaws) which would not allow the motorist the opportunity to use the service of POPLA." Does this make sense to anyone? To which "contract" do they refer? Is this NCP Terms and Conditions or LUL contract? And what is all this about the Landowner registering with the BPA? I can't find TFL or LUL on the list of BBP Approved Operators.
If LUL, as a PLC, are saying in a very loose way that they own "property", does this mean that the car park is no longer "relevant land" and that in fact the Bylaws don't apply? I'm confused!!

Coupon-mad

''The PCN was issued in a Non POFA car park and issued under breach of contract. The PCN was not issued under Bylaws.''

Doesn't matter if it wasn't issued under byelaws because they've admitted this is a 'non-POFA car park' (i.e. one that is under statutory control). So, keeper liability cannot apply.

Also, I'd be surprised if neither the PCCN nor the parking sign at the entrance talks about Byelaws. I reckon one or both do so NCP are being economical with the truth.

The contract seems to fall into your hands too.

And the fact they won't have been able to show who the driver was, nor the owner was.

Keep your comments short and to the point, not another epic, or POPLA will think it's a second appeal which they will ignore.

Boggy0220

Thank you CM.

If you recall, it was thought that the person making the very first appeal to NCP may have named the driver. However, having been supplied with their paper trail there was nothing that actually gave that away and so that, Im sure, has secured that. It is interesting to note, on the same subject, that they have made a a rather bold assumption that on the balance of probability the appellant was the driver. They make quite a thing of this but as we know, such an assumption has been ruled against. I just need to find that case to refer to in the reply.
In addition to these points, there are also some factual inaccuracies within their evidence amongst which I have found that they have changed the date on one of their letters that they claim was sent out to the appellant yet it was I fact sent by email and we have that showing a completely different date. I'm not saying that they have fabricated evidence but it certainly begs the question why the date is different.

As for the photo they have supplied of the sign showing the full terms and conditions, well it is barely readable and when you try and magnify it to try and read it, it becomes pixilated and unreadable and as such, a sure way of hiding something they want to hide... Perhaps?

Coupon-mad

In addition to these points, there are also some factual inaccuracies within their evidence amongst which I have found that they have changed the date on one of their letters that they claim was sent out to the appellant yet it was I fact sent by email and we have that showing a completely different date. I'm not saying that they have fabricated evidence but it certainly begs the question why the date is different.

Wow... State that VERY clearly to POPLA, just the way you wrote it here!

As for the photo they have supplied of the sign showing the full terms and conditions, well it is barely readable and when you try and magnify it to try and read it, it becomes pixilated and unreadable and as such, a sure way of hiding something they want to hide... Perhaps?

Again, say that just the way you've said it here.

they have made a rather bold assumption that on the balance of probability the appellant was the driver. They make quite a thing of this but as we know, such an assumption has been ruled against. I just need to find that case to refer to in the reply.

It was stated in the POPLA Annual Report 2015 by the Lead Adjudicator himself, the parking law expert and barrister, Henry Greenslade (quoted a lot on here).

This exact finding was also made in 6061796103 against ParkingEye earlier this month in another ANPR appeal, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received.

After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

Boggy0220

Very pleased to announce that this matter has been to adjudication and found in our favour. Despite a comprehensive submission they found on the single fact that NCP failed to identify the driver. There were no comments made regarding the other points raised but a win is a win and we are happy with that.

Thank you all for your help, comments and guidance.